L’ouverture de la faillite : situation actuelle et mise en perspective

This article presents the opening of Bankruptcy Procee­d­ings under Swiss law and especially the problem of the costs. Bankruptcy Proceedings against legal entities are normally initiated without prior enforcement proceedings. According to 725 II CO, the board of directors has a legal duty to notify the court in the case of overindebtedness. In this case, the payment of an advance is not necessary, which may look unfair. This article shows that board members may be tempted to delay the notification until it is foreseeable that the assets are not even sufficient to cover the costs of summary bankruptcy proceedings. The proceedings will then be suspended by the court and it will be more difficult for the creditors to introduce a liability claim against the corporate bodies. This article analyses the solution proposed by the Federal Council to increase the liability of the board members for the costs of the Bankruptcy Proceedings. It concludes that a better proposal would be to extend…